* Originally Published in revista 22 collection ' a Constitution for liberty III '

Liability of members of the Government institution, as provided by Art. 109 of the Romanian Constitution, deserve a thorough analysis. The relationship between the Government and justice is a basic component of the rule of law, with a direct influence on the way in which we manage the democratic rules to which it is related to the entire society. A Minister can make decisions wrong or uninspired from politically and then will reply jointly with other members of the Government in front of Parliament, in accordance with the Constitution. But also a Minister can commit criminal offences, i.e. those facts expressly stipulated and prosecuted by the criminal code. Some issues involved here that we didn't clarify constitutional provisions. These provisions do not manage to rekindle a dignitary of a whole in matters criminal nor taken together with specific legislation.

Law 115/1995 on the ministerial responsibility have been established procedural conditions in which a member of the Government can be held responsible for acts committed in infractional character exercise its function. In accordance with article 5. 13(2). 1 of Law 115/1995 on the ministerial responsibility, "debating the proposal to start the criminal in the Chamber of deputies or the Senate shall be made on the basis of a report prepared by a permanent Commission that, within its competence, carried out an investigation concerning the activity of the Government or a Ministry times a Special Commission of inquiry established to this end". Why "the beginning of" criminal of a Minister is subject to investigation of the activity of the Government or Ministry? For the rest of the citizens equal before the law, the proposal to start the criminal comes from a Prosecutor in the quality of Public Trustee Ministry, the Romanian Constitution says in article 9. 131 that "represents the general interests of the society and defend legal order, as well as the rights and freedoms of citizens."

Art. 109 paragraph 1. 2 of the Constitution stipulates that only the Chamber of Deputies, the Senate and the President of Romania shall have the right to ask the prosecution to members of the Government for the acts committed "in the exercise of their function". And Art. 7 para. 2 and Art. 11 of Law 115/1999 on ministerial responsibility, respectively, provide that the Government respond according to the common law for committing crimes outside the exercise of their function and that respond to criminal doings committed in the exercise of their function, the date of juramantului and up to termination, the terms stipulated in the Constitution. How is the scope of the "exercise of the function" is not cleared, either by the Constitution or the Penal Code, Law No 115/1999. This will be decided by the Commission.

Things get complicated when sending a Minister to sue is proposed by the President. Here are the steps you need to follow the President to be able to ask the prosecution of a Minister; 16 of the law 115/1999: President of Romania is invoked to demand criminal prosecution of a Minister by the Prime Minister, the Attorney general or the head of the DNA; the appeal is adjudicated by the Special Commission, which makes a proposal of the President; the President addressed to the Minister of justice a request for this purpose; the Special Commission, called on a term of 3 years, draws up a report with proposals on criminal prosecution or appeal rank.

What is the component of this Commission? According To Art. 391. 4, "its component shall be approved by the Decree of the President of Romania, at the recommendation of the Minister of Justice and Minister of administration and Interior". There are no further references to specialisation and the other Commission mechanisms of the provenance of the political balance of the Commission. The result is obvious: the privileged distance between procedures worse and citizens political system and introduce a intolerabila dose of instability of the justice system in this country.

Art. 16 do not clarify whether or not debates take place depends on the beginning of criminal punishment as provided by Art. 13. When they occur, it is also unclear if the Minister accused of criminal offences the right to defense envisioned and guaranteed by Art. 24 of the Constitution of Romania. Shall have the right to attend and be a camera? To what extent conclusions can be combated with procedural arguments recognized by the rules applicable to ordinary criminal citizens? An unknown is if, in the event that the Minister and lawmaker, is accused having priority provisions concerning immunity or those relating to ministerial responsibility.

These observations cause us to develop the issue of ministerial responsibility after the mandate of the Minister has been finished in any of the manners provided by law. Before the law changed, 115/1999 on ministerial responsibility contained provisions about how it conducts criminal prosecution in the case of former members of the Government. But according to the decision of the Constitutional Court No. 665/2007 was declared as unconstitutional under paragraphs 2 and 3 of article 23. 23 of Law 115/1999, exception of unconstitutionality being erected by Mr. Adrian Nastase. Those articles established as "criminal investigations and prosecuting former members of the Government for offences committed in the exercise of their function as they are stipulated by Art. 7-11, is performed according to the rules of criminal procedure law "and that" the procedural Provisions of this Act do not apply to former members of the Government in any situation ". So as I showed with another occasion, the constitutional arguments are hard to comentatat.

In the reasoning of the decision are used phrases like "protection of dignitaries from abuse" or "public interest" and, in my opinion, demonstrates bad faith, mean-spirited partisanship, interests and obedience towards political structures.

In the current legal conditions, it is difficult to answer the question "how long after completing his tenure as Minister he will benefit from special procedures and the provisions of the code of criminal procedure, when he is accused of committing a crime?". Starting the criminal in this case will do everything for a Commission and after 10 years after the end of the mandate, in place of a Prosecutor, after an indictment, according to the rules which apply to all? And, again, things get even more complicated when it comes to criminal prosecution and sending suing some members of the Government who have the status of members of Parliament. They then enter the subject to Art. 72 para. 2 of the Romanian Constitution, which States that "deputies and Senators may be chasing and sent criminal judgment for facts that have no connection with political opinions or votes cast in the exercise of their power, but it cannot be perchezitionati, detained or arrested without the consent of the Chamber they belong", but at the same time and benefit from special procedures stipulated by the law on ministerial responsibility.

A peculiar legal situation regarding the criminal liability of officials, especially those who added the function of Minister with parliamentary status, is the one referred to in Art. 72 para. 3 of the Constitution. It provides that, "in case of flagrant, deputies or senators may be detained and subjected to perchezitiei and as the Minister of Justice will inform without delay Chamber President over his detention and perchezitiei". Also as, "If the Chamber finds that called for restraint there, this will immediately revoke the measures." The text of the Constitution has in mind but a flagrant, I mean in a surprise situation where guilt would be challenged. How, under these conditions, a Romanian Parliament Chamber to satisfy itself that there is no basis for retaining or search warrant and to revoke the measure taken definitely a Prosecutor authorized to take such steps? In this case, the Camera will turn Parliament into a court that explores evidence of a criminal nature and features accordingly. This comes in contradiction with the express provision of article. 126 in paragraph 1. 5 of the Constitution, which prohibits the establishment of extraordinary courts. The same argument applies in the case of offenses for which officials under investigation are not egregious, because of course as with their consent is required of the Chamber in which the defendant or accused. We come to the conclusion that, in the current legal situation, fellow deputy or Senator have accused over the safety measures that may be taken in the case in question, and if it is part of the majority party or coalition, revoking measures taken by prosecutors will be ensured.

I must admit that I find it hard to accept that the criminal liability of a member of the Government must be carried on otherwise than any other citizen responsibility which commits an offence. A Minister is a citizen of the same State as well as any one of us, a criminal deed is a criminal deed and a fake is a fake, regardless of the status of the one who is guilty of this offence. I find it hard to accept that, for example, if a Minister isi banging driver, police can seek criminal prosecution for the crime of injury, but this must be done by the President, the Senate or the Chamber of Deputies. The finding of a possible crime is a problem pertaining to a certain specialization. Why the Senate may replace a prosecutor just because that person holds a public office?

Maybe the answer to this question is easy, but it is not tolerable. The rule of law is not compatible with the establishment of a statute for legal dignitaries in place for carrying out the principle of classical liberal that we are all equal before the law. We have laws, but they are not fair. This enhanced privileges through normative acts, we will inevitably frustrate the intentions of establishing a true democracy.